Opinion

Risk of death is more than a ‘blemish’

28th Jun 2018

One of the purposes of the Queensland workers’ compensation legislation is to support workers who have been injured at work to get back on their feet, regardless of the cause of their injury. The exception to this is in relation to psychiatric injuries, in which case support can be denied in the event that an injury is caused by ‘reasonable management action’. Employers and insurers have long taken advantage of this ‘exclusion’, leaving vulnerable workers without recourse. Industrial Commissioner Black has acted to limit this exception in the matter of McPherson v Workers’ Compensation Regulator [2018] QIRC 010.

Mr McPherson had been employed by BHP Billiton Mitsubishi Alliance at the Peak Downs Mine as a diesel fitter for 21 years. On 22 August 2015, as a result of events at work, he suffered an adjustment disorder and generalised anxiety, causing him to be unable to work for 14 months. Mr McPherson brought an application for compensation with BHP (the self-insurer). It was agreed that Mr McPherson was a worker, that he had suffered an injury and that his employment was the major significant contributing factor to that injury. The self-insurer, however, rejected the application on the basis that the injury was a result of ‘reasonable management action’.

On the evidence of Mr McPherson, which was supported by a number of witnesses and whose evidence was ultimately preferred by the Commissioner, the morning of 22 August 2015 proceeded as follows:

6:30 am – Pre-start briefing including job assignment. Mr McPherson and Mr Marsh are assigned to work on Dozer 401.

7:55 am – Mr McPherson enters the office with the intention of calling to Mr Marsh on the radio to return to Dozer 401 to remove his isolation lock. Mr McPherson is intercepted by his supervisor, Mr Barron, who instructs Mr McPherson to remove Mr Marsh’s isolation lock himself.

The issue before the Commission was whether the instruction by Mr Barron to Mr McPherson to remove Mr Marsh’s isolation lock was a mere ‘blemish’ or constituted ‘unreasonable management action’.

The isolation lock rule is considered to be a ‘life saving’ rule in the hierarchy of safety rules at the mine. Each employee who is working on a piece of equipment must first fit their individual isolation lock to the equipment. This prevents the equipment from becoming operational. Only the individual employee who owns a lock may remove it. This ensures that equipment is not started while employees are working on or in the equipment.

There is a procedure for removing the isolation lock of an employee who is unable to do so themselves. This involves firstly contacting the owner of the isolation lock. When it has been confirmed that the employee is unable to return to the site and remove the lock themselves, a superintendent may authorise a supervisor or a competent person to remove the lock.

The evidence revealed that the isolation lock rule was not always fully complied with, although the part most often skipped was the obtaining of authority from a superintendent. The evidence also showed that an isolation lock was rarely removed by someone other than its owner.

In this case, however, Mr Barron had made no attempt to contact Mr Marsh, who Mr McPherson knew to be onsite, prior to instructing Mr McPherson to ‘just take it off. I’ll do the paperwork later’. The respondent submitted that this should be categorised as a management blemish only. Mr Marsh was not in any danger and Mr McPherson was an extremely experienced operator. The event was ‘a single, isolated, and out of character deviation from a standard operating procedure’ by Mr Barron.

Mr McPherson, however, submitted that the actions of Mr Barron had left him in an impossible position. He either had to disobey the order of his supervisor and likely face problems with him ‘down the track’, or intentionally breach a life-saving rule, putting the safety of Mr Marsh at risk as well as his own employment. The order by Mr Barron was also in breach of the Coal Mining Safety and Health Act 1999 (Qld).

The Commissioner agreed with the position of Mr McPherson, stating ‘Mr Barron’s election to ignore a life-saving rule, to render a subordinate complicit in the breach and to demonstrate behaviour inimical to the fostering of a critical safety culture, cannot be excused in the manner proposed by the respondent’. It was determined that his conduct could not be categorised as a reasonable management action and, as such, Mr McPherson’s application for compensation must be accepted by the self-insurer.

In the past, decisions around what constitutes reasonable management action have often considered singular, one-off events to be excusable as ‘blemishes’ only, attracting the exclusion under s32(5)(a) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). This case demonstrates that employers and insurers cannot continue to hide behind this exception in all cases, and that the bar for what is ‘reasonable’ may be rising.

Maurice Blackburn Lawyer Michelle Wright has spent much of her legal career in the field of personal injury litigation and has a particular interest in assisting clients who have sustained psychiatric injuries from incidents at work or on the road. She is a member of the Queensland Law Society, the Australian Lawyers Alliance, the Women’s Lawyers Association of Queensland and the Logan and Scenic Rim Law Association and works in a variety of volunteer programs to ensure that everyone is given equal access to essential legal advices.

This article was originally published on Michelle's blog,P.I. Case Note.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).